№ 1 (99) 2018

Download Journal № 1 (99) 2018

Shtefan O. Some questions of the jurisdiction of the High Court on Intellectual Property in controversial copyright relationships

P. 5-10

The influence of the judicial reforms on the formation of civil jurisdiction in Ukraine is defined, the state of dissocia­ting civil jurisdiction from industrial ones in the context of such reforms of the High Court on Intellectual Property, and some measures of overcoming the existing collisions in proce­dural legislation are proposed.

Key words: jurisdiction, judicial-legal reform, specialization of courts, the Supreme Court on intellectual property, protection of the copyright

Ulitina O. Legal nature of fanfiction. Fanfiction as modern art

P. 11-15

The article is dedicated to the problem of legal nature of fanfiction. Fanfiction is a part of new modern art. The issues concerning the legal status of new kinds of art today are one of the most in­teresting and not fully developed questions in the field of copyright.

The article deals with the question about whether the authors of fanfics infringe the rights of the authors of original works or not. The article identifies the main characteris­tics of fanfics, which are important for establishing the legal nature of fanfiction.

The article contains the analysis of existing Ukrainian legislation, which regulates is­sues of copyright on original works and fanfics. It also analyses the legislation of the USA in this field.

Key-words: copyright, fanfiction, copyright object, fanfic, derivative work, parody

Petrenko I. Protection of copyright for the name of the literary work. Judicial practice in Ukraine and other countries

P. 16-26

Judicial practice in Ukraine and other countries. The author spends a lot of time and creative effort to create a work title, because the name is the first thing that reader en­counters when deciding whether to read the work now, or postpone it. There are many cases when works of different authors have the same name but absolutely different con­tent. In addition, creative or well-known titles of different works are used as a identify­ing names identifying for goods or services on the market. The issue of protecting the title of a work and protecting the rights on the title of the work is not something new, but still relevant. Further research is required on issues related to the capability of ti­tles of works, identifying signs of the originality of the work’s title, in the context of both national legislation and law enforcement practice and legislation as well as law enforce­ment practice in other countries of the world. The French Intellectual Property Code protects the title of a work as an object of copyright, which is clearly written out in the Code. In Ukraine, the protection of the title of a work as an object of copyright is direct­ly enshrined in the Law. At the same time, to recognize it as an object of copyright, the title must meet certain conditions: presence in the title of the work of author’s creative element; existence of an objective form of the title of the work; the title must be a part of the work; the title of the work must be creative; the ability of the title of the work to be used independently. The article deals with individual cases of foreign practice and ana­lyzes known cases in Ukraine related to the protection of rights of the title of the work, as an original part that can be protected as an object of copyright.

Analysis of national and foreign law enforcement practices makes it possible to as­sert that not in every case use of an original work’s title, as a designation of goods or services, can be recognized as a copyright infringement. The current legislation of Ukraine provides wide opportunities for protection of titles of works, as objects of copy­right. At the same time, there is a need for methodological refinement of the research to determine the features by which the titles of works can be considered as objects of copy­right protection.

Key words: judicial practice, author, literary work, object of copyright, signs of origi­nality

Zaykivskyi O., Onistrat O. Intellectual property question in national security issues researches

P. 27-42

The influence of intellectual property on ensuring national secu­rity and defense of Ukraine is considered. The importance of implementing measures to unconditionally ensure the protection of intellectual property, especially in the military- technical sphere to neutralize the threats to state security in the field of intellectual property.

Threats to the national security are constantly being transformed, the spheres of their influence are expanding. Today, radical new threats are being added to traditional threats, the occurrence of which is due to the development of science and technology, the processes of globalization and other factors.

The processes of globalization determine the main trends of the world economy and politics, and also cause radical changes in the international security environment. In the structure of the national interests, the possession of advanced technologies, the lat­est means of communications and communications comes to the first place. Modern technological, economic, informational development has led to the appearance of a wide range of threats of a new type and it enhances the effect of already known threats.

These threats include, in particular:uncertainty of the state scientific and technolog­ical policy; uncontrolled leakage of intellectual and scientific potential beyond Ukraine;scientific and technological lag of Ukraine from developed countries.

So, there is a growing need for theoretical studies that would conceptually define and substantiate the role of intellectual property in the field of national security and defense.

The complex study of various approaches to the analysis of scientific and technical policy is relevant in view of the need to prioritize the role of intellectual property in en­suring national security and national interests of the Ukrainian State.

In modern conditions, the concept of national security is expanding due to the inclu­sion of all the new spheres of public life in it.

National security of Ukraine is a complex multifaceted concept, and in the social spheres of functioning includes the following types of security: political, economic, mili­tary, state, informational, scientific and technological, ecological, epidemic, security of cultural development of the nation and other security (financial, fire, food, security of trade, etc.).

In order to neutralize the existing challenges and threats, it is not enough to rely only on the advanced achievements of the military-defense complex or the accelerated growth of the gross domestic product.

Therefore, the national security is unthinkable without consideration of intellectual property as an integral part of national security.

Intellectual property itself is a connecting element in the chain between science that produces new knowledge and technology, and industrial production, where they are im­plemented. Therefore, learning to effectively manage intellectual property is an impor­tant task for raising the level of economic security of Ukraine.

Considering the threats to the national interests and national security of Ukraine in the defense sector, specialists also note the problems of intellectual property that arise, including in cooperation with foreign defense industry companies (investments, joint production, procurement of technologies, etc.).

Recent developments of major defense or economic significance are, to a large extent, belong to the state secrets and they are the subjects of the state protection. However, each new development, by definition, contains the objects of intellectual property rights, which are the integral part of it. Therefore, the state is obliged to secure and protect its right to the objects of intellectual property rights related to the development of new models of weapons and military equipment or their modernization. This is especially true of measures of state defense orders and state programs for the development of weapons and military equipment. It is precisely in the course of the implementation of the research and development work and state programs the objects of intellectual prop­erty rights, which belong to the sphere of national interests, are created, and the state is obliged to ensure their protection and ownership of these objects. The question of the ef­fective protection of rights of the objects of intellectual property rights related to the de­velopment of new models of weapons and military equipment or their modernization is both in the context of ensuring the national security of the state and in the economic plane. This is a reduction in the cost of development, and the protection against the claims of anyone in the mass production for their own needs and for export, and the pos­sibility of profit from the sale of licenses.

A deliberate and purposeful modernization of the intellectual property sphere can act as a powerful factor in the transformations in the economy in whole, the engine of the transition to advanced technological processes, the development of new knowledge­intensive industries. Taking into account the above mentioned features, at the present stage, the urgency of optimization of the state management of the scientific sphere, stimulation of the development of innovation sectors of the national economy, and the strengthening of international cooperation is increasing.

The issues outlined need a comprehensive consideration by the professional commu­nity and take into account the actual security aspects of the development of education and science.

Further research of these issues should be aimed at improving the conceptual foun­dations of the relevant state policy of Ukraine and, in particular, developing a unified approach to defining a system of protection of intellectual property as an integral part of the sphere of ensuring national security and defense.

Key words: national security and defense, intellectual property, defense sphere, ob­jects of intellectual property rights, armament and military equipment, military-techni­cal cooperation

Shabalin A. About judicial evidence in the civil court order proceedings

P. 43-53

In the article scientific research the procedural scientific issues of civil proceedings (reduced judi­cial proceedings) of the Ukraine.

Historical aspects of the court order proceedings this is research.

Statutory legal features of judicial evidence scientific subject of this scientific article.

A scientific conclusion is drawn that judicial evidence can not in judicial process in cases of the court order proceedings (reduced judicial proceedings). This scientific conclusion is based on the fact that in court proceedings the court does not conduct a study of judicial evi­dence in the court order proceedings.

Is worth mentioning that both the procedural law does not allow the judicial parties to provide their own judicial evidence for the court in the court order proceedings.

Here are the main features of judicial evidence in the caseof the civil court order proceed­ings (reduced judicial proceedings) of the Ukraine.

Key words: court order, civil litigation, court, judicial evidence, civil litigation

Sopova K. Trademark rights economic disputes

P. 54-64

The article reveals the pecu­liarities of economic-legal disputes concerning the trademarks rights, their classification and reasons for their appearance; issues in differentiation of court jurisdiction of cases in disputes concerning trademarks rights and issues in jurisdiction of the High Court of in­tellectual property are raised.

The peculiarities of litigation in disputes concerning the trademark rights are: the subject structure — business entity; object — trademark rights which are realized in eco­nomic activity; the content of legal relations — the rights and obligations in each particu­lar type of dispute. Regardless of the type of dispute, he is always economic-legal. Today we have a unique situation: the legal proceedings in the field of intellectual property will be considered according to the rules of economic court proceedings.

Keywords: economic-legal disputes, trademark, judicial jurisdiction, types of dis­putes concerning trademark rights

Androshchuk H. Intellectual property in the system Internet of things: economic-legal aspect (p. 2)

P. 65-73

The economic-legal aspects of the state and trends of the In­ternet-based technologies (IP) technology, the place of intellectual property in it are considered. It is shown that the Internet of Things creates conditions for the emer­gence of a synergetic effect from the combination of possibilities of artificial intelli­gence, cloud computing, set of sensors, mathematical algorithms for processing large data (Big Data), robotic devices of various purposes, data transmission systems (In­ternet), which allows to provide various services and perform various work with or without the participation of people. The role of the state in promoting the develop­ment of IP, the existing problems and ways of their solution are shown. Many govern­ments in recent years are taking measures to analyze the state of affairs with the in­troduction of IP technologies, the localization of problems and threats that may or may occur in the future in order to formulate a common strategy for the development of industry for the production of IP technologies and their application in various sec­tors of the economy and public life.

The patent landscape of the IP is analyzed, the most productive companies and in­ventors of IP are discovered, the dynamics of patenting in the IP environment, the value of patents, patent research problems are shown. The problems of intellectual property protection in the sphere of IP, in particular, copyright, inventions, trade­marks, commercial secrets, information security are considered. The intellectual po­tential and untapped potential of Ukraine in the development of IP technologies are considered.

It is concluded that in the widespread use of IP technologies, there is a significant potential for increasing the efficiency of any type of human activity. It concerns the real economy, industry and agriculture, health care, public administration, education, financial turnover, etc. The development of IP technologies is the most powerful stim­ulating factor in the innovative development of nanotechnologies, microelectronics, semiconductor technologies, microiminating of executive devices, telecommunica­tions, radio technologies, software computing, robotics, and more.

Keywords: Internet things, intellectual property, innovation development, patent activity, patent information, patent landscape, potential, technology

Postrygan T. Development of science parks of Japan and China: historical and legal aspects

P. 74-80

The article reveals the important historical and legal aspects of the establishment and activity of science parks in the Japan and China.

The author studies the laws of Japan and China on the questions of activities of universities and procedures for business investment, technological innovation, tax in­centives, exemption of export operations from duties and export taxes, intellectual property rights obtained with state financing of developments and other issues.

The author has traced the history of development of science parks in in Japan and China since their inception to the present. Considered innovation parks and their fea­tures. Researches of scientists were analysed on state-legal regulation of higher edu­cation, research institutions, science parks.

It was characterize the current state and trends of science parks in the Japan and China.

Keywords: science park, science, regulation, technology, innovation

Omelchenko O. Concerning the necessity of implementation of the concept and legal category of biobank in Ukrainian legislation

P. 81-87

The paper sub­stantiates the necessity of the introduction into Ukrainian legislation the concept of «biobank» and the derivation of the relevant legal category and the relevant legisla­tive term. Many countries have long experience in the functioning of biobanks. Ukraine is currently only at the beginning of the path to creating a system of biobanks and ensuring their proper functioning.

In Ukraine there is no comprehensive legal regulation of the biobank activity, and the term «biobank» is not used in the Ukrainian legislation. The theoretical and prac­tical biobank functional aspects are left behind attention.

The paper analyzes the definition of the term of «bank of umbilical cord blood, other tissues and human cells», which are enshrined in the current Ukrainian norma­tive legal acts. There are two definitions of the term of «bank of umbilical cord blood, other tissues and human cells»: in the Resolution of the Cabinet of Ministers of Ukraine dated March 03, 2016 No. 286 About Approval of Licensing Conditions for the Economic Activity of Cord Blood Bank, Other Human Tissues and Cells in accor­dance with the List approved by the Ministry of Health and in Order of the Ministry of Health of Ukraine dated April 10, 2012 No. 251 About Approval of Licensing Condi­tions for the Economic Activity of Cord Blood Bank, Other Human Tissues and Cells. The above definitions do not duplicate each other, but are characterized by a certain inconsistency and do not provide a complete and comprehensive description of the term «bank of the umbilical cord blood, other tissues and human cells».

For indications of repositories that store biological samples use the terms: biorepositories, biobanks and biological resource centers. The differences among biobank, biorepository and biological resource centre are emphasized. The paper stud­ies the definition of the term «biobank», formulated by international legal science.

The conclusions about the expedience of using the concept of «biobank» in the Ukrainian legislation, formation of the corresponding legal category and its proposal to the national legal doctrine of medical law are formed.

Key words: biobank, biorepository, human biological materials, management of biobank resources, legislation, legal regulation

Kadetova O. To the questionnaire of characteristics and ways of development of legislation in the field of intellectual property in Ukraine

P. 88-97

The article investigates intellectual property law through the prism of the theory of law and civi­lization doctrine. The justification is given why the intellectual property relations should be considered as an object of civil legal regulation. The complexity of the chal­lenges faced by Ukraine in the process of developing a national system of intellectual property legislation is underlined. The link between the quality of legislative regula­tion, law enforcement and the legal culture of society as a whole is confirmed. It is proved that intellectual property legislation can be characterized through functional, horizontal and vertical structures. The main sources of legislation in the field of intel­lectual property should include the Constitution of Ukraine and the Civil Code of Ukraine. The analysis of the provisions of the Association Agreement between Ukraine and the EU provides grounds for arguing that the Agreement should also be considered as the main legal instrument for the intellectual property field. Also, the main source for regulating the status of a separate object of intellectual property right is to recognize and special laws in this area. It is emphasized that the prospect of de­velopment of legislation in the field of intellectual property may be the elimination of a double level of regulation of social relations in this area and the adoption of a single codified act that will be of a complex nature.

Key words: intellectual property, legislation, source of law, Association Agreement

Review of the monograph by V. Ivashchenko

«Development of legislation in the field of intellectual property in Ukraine (XIX-XX centuries)»

P. 98-101